Articles Posted in Labor and Delivery Negligence

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On October 11, 1981, a woman of foreign birth delivered a set of twins prematurely at a New York Hospital in Kings county. Two weeks after his birth, while he was still in the hospital, the mother noticed a swelling on this thigh. An x-ray performed at the hospital revealed that the baby had a broken leg. There was no legitimate cause for the injury provided to the parents of the child. Nine years later, the mother attempted to file a medical malpractice lawsuit based on the child’s birth injury. She stated that she should be allowed to file a late claim because she was born in a different country and was not aware that she was entitled to file a medical malpractice lawsuit. She stated that she was uneducated and that she requested permission to file a late cause of injury. The court allowed her to file a delayed motion. At which point she was granted a trial. However, the Supreme Court later dismissed the motion and stated that she was not allowed to file. The Brooklyn court maintains that ignorance of the law is not an acceptable excuse for a failure to file.

The child, however, may be able to file at a different date. The child has suffered enduring physical trauma from this injury. His broken leg did not mature at the same rate as his uninjured leg. The injury has left him with one leg that is shorter than the other causing a visible limp when he walks. There is indisputable proof that the child’s injury occurred at the hospital and while he was in the care of the medical staff at that hospital. The enduring pain and suffering that the child has experienced throughout his life is also undisputed. It is clear therefore, that the hospital was aware of the injury and should have been familiar with the facts constituting the claim within a reasonable timeframe. The hospital is within its rights to claim that a nine year or more delay would prejudice them. They contend that the medical staff that treated the child may not still be employed by the hospital and that they may not be able to locate them. If they do locate them, it is likely that they will not remember one birth out of all of the births that they attended while at the hospital nine years later. The mother contends that the hospital had her son’s medical records and that should account for notice of the injury in a timely fashion.

The court does not agree with that contention. The court maintains that a victim of medical malpractice has 90 days to file a claim from the date of the injury. Failure to file within that 90 day framework poses a problem for all parties concerned. In cases such as this one where the injury was evident, but the enduring injury was unforeseeable, causes problems and in some cases may become an exception to the rules of delay. However, the court in this case ruled that the hospital did not have actual notice of the facts underlying the claim in a reasonable time period.

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On 2 January 2008, the instant action was commenced, when NYCCS filed abuse petitions against respondent-mother.

On 31 December 2007, respondent allegedly allowed the subject child (herein “subject child”) to sleep in her bed, touch her, kiss her on the mouth, insert his finger in her anus, insert his finger in her vagina, and have sexual intercourse with her to the point of ejaculation.

According to respondent, she did not stop the child because she could not believe that her son would do this to her, and she wanted to see how far he would go. The said incident was alleged to be in violation of Penal Law, sexual misconduct, rape in the third degree, rape in the second degree, and sexual abuse in the third degree. In addition, the petitions alleged that respondent failed to provide adequate care and supervision for the children by misusing alcoholic beverages to the extent that she loses control of her actions. Specifically, the petitions alleged that on 30 December 2007, she drank two Corona beers causing her to become intoxicated. In addition, the petitions alleged that the subject child woke up at 3:00 AM on 31 December 2007 in his mother’s bed smelling alcohol because she drank three quarters of a fifth of Johnnie Walker Red on the previous evening. Finally, the petitions alleged that respondent’s other two children are derivatively abused and neglected children by virtue of the abuse of the subject child.

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A medical malpractice action was filed by a mother and her husband against her physician and the hospital, where she was admitted for her delivery. The mother asserts that the physician left a foreign object specified as a surgical needle in her perineum during one of the suturing procedures. The mother gave birth on three occasions under the same hospital care, and after each delivery, a suturing procedure was performed. The mother seeks damages for physical pain and mental anguish. She also seeks damages for loss of services.

The mother states that her first delivery happened on the year of 1993 and she was presented to the hospital to deliver her first child. She was then handled by a physician and performed a right mediolateral episiotomy. The second delivery occurred after three years where she gave birth to her second child at the same hospital under the care of another physician and again obtained a mediolateral episiotomy. After a year, the mother gave birth to her third child. The physician who handled her second delivery induced labor but left the delivery room when his shift was over. The reliever doctor then delivered the child. The reliever doctor is the same doctor who handled her first delivery on her first child. After the delivery, the mother suffered a first degree laceration and was repaired by the reliever doctor.

According to the mother’s testimony, after the birth of her third child, she began to feel a throbbing, squeezing pain in her lower right pelvic area. Her pain was at level six as scaled from one to ten at one point at that time but was not constantly at that level. The pain never became lower than a four or a five. She further states that she can perform her normal daily activities, but used over-the-counter pain medication frequently. The mother also asserts that she had a separate and distinct pain during intercourse. She described the pain as very sharp, stabbing pain in the area surrounding her vagina. The pain was severe enough to limit her sexual activity with her husband from roughly four times a week to two times a month. The pain eventually became less severe.

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A legal action was filed by a mother to recover damages for the alleged medical malpractice against the medical professionals who handled her medical care and treatment during her pregnancy. The mother asserted in her first reason of action that due to her physician’s negligent care and treatment for her entire pregnancy up to her delivery, she gave birth to an infant suffering from congenital defects. The mother further alleges that the physicians’ failure to diagnose the fetus’ congenital defects during the term of the pregnancy resulted in the infant being born with multiple life threatening congenital defects causing her to suffer substantial economic loss for medical care of the infant. On the mother’s second reason of action, she claimed that due to the negligence of her physicians, she was caused to endure pain, suffering, anxiety and the emotional distress of giving birth to a disabled child, learning that the child suffered from multiple congenital defects and emotional injury flowing from those disabilities. The mother further alleges independent personal injury resulted from the surgery necessary to remove a portion of her liver to transplant into her infant son and the emotional injury stemming from her transplant surgery. The mother claimed that if not for the negligence of the physicians, her liver transplant surgery would not have been necessary. The third reason of action in the complaint is a derivative claim of the husband for medical expenses stemming from his wife’s liver transplant surgery and the attendant loss of services.

The physicians now move for a request to dismiss the second and third reasons of action in the complaint on the grounds that emotional distress is not recoverable as a result of the birth of a child born with congenital defects and the mother’s claim for personal injury is unrelated to the care and treatment rendered by the physicians during her pregnancy. The physicians in Nassau and Suffolk state that the mother did not suffer an independent physical damages apart from those recognized in normal labor and delivery of a child and the surgery complaint was a result of the mother’s voluntary donation of a portion of her liver to her child. The physicians further assert that the derivative claim of the husband also must fail as it is predicated upon the emotional injuries claimed by the mother and also from the mother’s voluntary donation of a portion of her liver.

The complainants oppose the motion on the grounds that the physicians’ misunderstand the second reason of action as a claim exclusively for emotional injury flowing from the fact that the complainants’ son was born with congenital deformities. The complainants argue that the second reason of action seeks to recover for the physical and emotional injury of the mother related to the surgery necessary to donate a portion of her liver to her infant son, as well as the emotional damages of a parent of a disabled child, and the emotional damages flowing from the disabilities of her infant son. The complainants also argue that the derivative claim in the third reason of action flows from the physical and emotional damages of the wife as a result of the transplant surgery.

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A mother and her baby have pleaded a separate cause of action. The accused hospital moves to dismiss the infant’s cause of action, brought by her maternal grandfather as Guardian appointed by an order of the Court.

It is claimed that the hospital’s negligence, failure to provide adequate care and supervision, failure to protect and safeguard her health and physical body from harm from others while the mother was in the custody of the hospital resulted in the infant’s conception and being born out of wedlock to a mentally deficient mother. Furthermore, it is said that the infant was deprived of property rights, normal childhood, home life, proper parental care, support and rearing has caused her to bear the stigma of illegitimacy and has otherwise been greatly injured and such injuries are represented in plead sum of $100,000.

The hospital does not assail the mother’s cause of action wherein her Guardian seeks $50,000 for the claimed carnal assault of the mother while a patient at the said hospital, resulting in the pregnancy and birth allegedly due to the State Hospital’s insufficient care and supervision of said mentally ill patient. The legal posture is not inconsistent with the instant motion. In effect, the State Hospital says that if proven, there is a recognized cause of action in favor of the mother but regardless of proof the infant has no cause of action such as pleaded. The hospital emphasizes that the claimed cause of action of the infant has never been successfully pleaded in any other case although there have been trials of a mother’s cause of action.

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A complainant mother underwent an abortion in a hospital. During the procedure, her uterus was punctured and she initiated an action for medical malpractice while her husband sued for loss of consortium.

After two years, the mother conceived a fetus and apparently completed a normal term pregnancy. Approximately three years after giving birth and seven years & six months after commission of her alleged tort, the medical malpractice suit was settled for $175,000. The settlement occurred during the course of the trial.

It is now contended that as a result of the perforation of the mother’s uterus, a son was born with brain damage. Accordingly, the action was instituted almost seven years after the commission of the alleged act of medical malpractice and more than two years after the birth of her son.

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Plaintiff had made appointments to an abortionclinic at 1995 Broadway. Upon arriving thereat, she was asked to complete some forms, pay the appropriate fees and subject to a urine and blood test. She was then directed into another room where she changed into a paper gown and was brought into an operating room. Her blood pressure was then allegedly taken and the doctor who would perform the abortion came in and introduced himself. The doctor then explained the procedure and performed such procedure, thereafter. After the procedure, the doctor went into the recovery room, took the plaintiffs blood pressure and asked how she felt. Nothing was mentioned at the time about returning to the clinic, neither did he discuss anything about any follow-up visits with her. However, he told her that she might experience some cramps and that if they became severe or painful not to take aspirin but Tylenol. Just before plaintiff left, a nurse gave her a “Rogam” shot telling her they were giving it to her because she was RH negative. The charge for the shot was extra, $20 or $25. After plaintiff paid and was getting ready to leave, the nurse in the reception area told her to call and make an appointment for two weeks later for a follow-up visit but did not offer to make the appointment at that time.

Days after the abortion, plaintiff called and made an appointment or a follow-up visit two Saturdays from the date on which she had the procedure done (i.e. for January 23). However, the second week after the abortion she experienced cramps and took Tylenol.

On 16 January 1982, the abortion clinic received a pathology report which suggested the possibility that she was still pregnant. A notation on the pathology report indicated that the plaintiff had been called about the results and told to return to the center for a follow-up; however, plaintiff testified that she never received any such call. In fact, she rescheduled her 23 January 1982 appointment for the following Saturday because a snowstorm had been predicted for the 23rd.

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The videoing of a child’s birth is a long standing tradition for many families. It’s been permitted for decades, but there is increasing debate in hospitals now about whether or not parents should be allowed to do so. 

One mother filled photo albums with the births of her first three children, but during the birthof her fourth, her doctor at Baptist Desoto ordered all cameras out of the delivery room.  She said the nurses told her that they don’t allow pictures.

She now laments the one missing photo album for her youngest child. 

According to a doctor with the U.T. Medical Group, in the age of social media and cell phones, what happened to that mother could become the norm. “Now it becomes an issue on a daily basis, you know, people whipping out their phones besides even the regular video camera,” she said. Social media sites, with their naturally open sharing, are urging hospitals to rethink the recording of the delivery room process.  

”I think social media has brought a whole new dimension into the healthcare environment,” a representative of Baptist Memorial Hospital said. At Baptist’s 14 facilities in Tennessee, Mississippi, and Arkansas each hospital sets its own policy on cameras in the delivery room.  

Currently, a hospital official says, they do not have a system wide video or picture taking policy for the delivery room, and there is no national policy, either. 

At The MED, cameras are allowed, but if complications arise, they can be banned at a moment’s notice. 

Why all the scrutiny, and why are hospitals seemingly acting harshly when it comes to preserving a beautiful moment? It is because childbirth videos regularly show up in medical malpractice suits, and studies show obstetricians are sued more often than any other specialty doctors. On attorney says, “Everybody knows that pictures speak for themselves.”

The mother in this story says that doctor’s disallowed her camera because she was a high risk patient. Subsequently, the first picture she has with her daughter was taken two hours after she was born. 

Professional birth photographer Brandy Kemp hopes the advent of technology doesn’t force further restrictions.  “It would be devastating to some families if they couldn’t record that actual event,” she said. Hospitals in New York City and Westchester are investigating this situation.

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An $18.2 million settlement was awarded to a Wisconsin woman by the Federal government who funded the former Sinai-Samaritan Hospital in Milwaukee. The hospital was found negligent in the birth injury case. The plaintiff alleged that the child’s birth injury was due to the “horrific care” that she received from the hospital which led her daughter to suffer permanent and severe brain damage.

According to a source, the plaintiff claimed that when she went to the former Sinai-Samaritan Hospital to deliver her baby, the hospital staff failed to asses her risk of complications. She was also not referred to a specialist despite the fact that she had been diagnosed with gestational diabetes and had a documented history of delivering above average weight babies.

Instead, she was allegedly attended by a family practice and midwives. Her legal team insisted that had her pre-registration notes been more closely read, she may have received the proper medical attention that she needed, and her baby may have avoided a birth injury.

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Facial nerve palsy results in the partial or complete loss of voluntary (controllable) muscle movement. This trauma occurs in an infant’s face due to pressure on the facial nerves just prior to or at the time of his or her delivery. The seventh cranial nerve, in particular, is damaged.

In many cases, the appearance of and cause of this birth injury is unknown. But in a difficult delivery, whether the doctor used or didn’t use forceps, there are many factors that may have led to the condition.

A study just released a listing of some of the factors that can cause birth injuries. Those factors include a large baby, which is often seen when the mother has diabetes. An overly long pregnancy or labor is connected to the distressing injury, as well as the use of epidural anesthesia and other medications used to cause labor and stronger contractions.

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